08ASTANA525, KAZAKHSTAN: SPECIAL 301

To understand the justification used for the classification of each cable, please use this WikiSource article as reference.

Discussing cablesIf you find meaningful or important information in a cable, please link directly to its unique reference number. Linking to a specific paragraph in the body of a cable is also possible by copying the appropriate link (to be found at theparagraph symbol).Please mark messages for social networking services like Twitter with the hash tags #cablegate and a hash containing the reference ID e.g. #08ASTANA525.

UNCLAS ASTANA 000525
SIPDIS
SENSITIVE
SIPDIS
STATE FOR SCA/CEN (O'MARA) and EB/TPP/IBE (JBOGER)
STATE PASS USTR FOR JCHOE-GROVES
COMMERCE FOR ITA/MAC/OIPR (CPETERS)
E.O. 12958: N/A
TAGS: ETRDKIPRECONKZ
SUBJECT: KAZAKHSTAN: SPECIAL 301
REF: (A) STATE 09475 (B) 06 ASTANA 009 (C) 07 ASTANA 0454
-------
SUMMARY
-------
¶1. (SBU) Over the past year, the Government of Kazakhstan (GOK) has
continued to demonstrate a commitment to the development and
modernization of its IPR protection regime. Despite an increase in
the domestic production of pirated CD's and DVD's in Kazakhstan's
two largest cities, the GOK, and more specifically the IPR Committee
of the Ministry of Justice, continues to move forward in meeting
international standards and addressing the concerns of the
international community for the enhanced protection of IPR on the
legislative, judicial, and enforcement fronts. Facing a continuing
challenge to stem the flow of pirated goods from Russia and China,
the GOK has also proposed legislation to further empower customs
officials to seize counterfeit materials before they enter the
country. Although criminal sentencing remains at low levels, and
the lack of a public perception of the seriousness of IPR violations
is problematic, ongoing educational programs and proposed
legislative changes set to come to parliament for ratification in
late spring 2008 are expected to significantly improve the IPR
environment. Therefore, post recommends continuing Kazakhstan's
exclusion from the Special 301 Watch List. End Summary.
--------------------------------------------- ----
ENFORCEMENT INCREASES, BUT CRIMINAL SENTENCES LAG
--------------------------------------------- ----
¶2. (SBU) IPR enforcement efforts continue to increase, and the
numbers of convictions for administrative and criminal offenses grew
in the last year. According to combined 2007 statistics released by
the Ministry of Justice IPR Committee, and the Procurator General,
-- 1971 IPR-related raids were conducted. As a result of these
raids, 1418 entities (organizations and individuals) were charged
with administrative penalties;
-- 2670 administrative cases were initiated;
-- 20,250,755 KZT ($168,056) was collected in administrative fines
(compared to 14,385,725 KZT, or $116,013 in 2006);
-- 229,979 counterfeit copies valued at 132,369,884 KZT ($1,098,505)
with unlicensed or illegal trademarks were confiscated (compared to
121 million KZT, or $975,806, in 2006); and
-- 658 criminal cases were initiated (compared to 268 in 2006).
¶3. (SBU) Of the 658 criminal cases initiated in 2007, 447 were sent
to courts. Of these, 108 people were convicted under Part 1 of
Article 184 of the Criminal Code, one person was convicted under
Part 2, and 54 under Part 3. (NOTE: Parts 1-3 of Article 184
represent, in order, increasing categories of severity in both the
level of the offense and severity of punishment, based on amount of
damage, scale of the offense, repetition of the violation, etc. End
note.) Penalties for those convicted of violations of Article 184
vary. They include fines ranging from 100 to 700 times the Monthly
Calculation Unit (one Monthly Calculation Unit is currently set to
1,168 tenge, or $9.60), the confiscation of 5 to 10 months' wages,
community service of 100 to 240 hours, or imprisonment from 2 to 5
years and the possible confiscation of property.
¶4. (SBU) Despite the relatively high number of criminal
convictions, no data has been made available regarding sentencing.
According to an official at the General Prosecutor's Office, this
most likely indicates that no individuals have been incarcerated,
and that the criminal sentences were either reduced to
administrative penalties, or suspended. (Comment: The lack of jail
sentences remains of concern, indicating a continued perception
within the courts that copyright infringement alone, in the absence
of other criminal violations, does not merit incarceration. End
Comment.)
----------------------------
NEW AND CONTINUED CHALLENGES
----------------------------
¶5. (SBU) Outside of Kazakhstan's two largest cities (Almaty and
Astana), the vast majority of pirated media available originates in
Russia and China. Russia -- with its many railway links to northern
Kazakhstan -- presents a particular challenge for Kazakhstani
authorities. As noted by the IIPA, customs officials continue to
lack the ex officio authority required to seize counterfeit
materials at the borders, when they are discovered.
¶6. (SBU) According to private industry representatives, 2007 has
witnessed an increase in the availability and sales, particularly in
Almaty and Astana, of domestically produced counterfeit CD's and
DVD's. This is largely due to the increasing availability of
pirating technology and the willingness of small-time media pirates
to engage the police in the "cat and mouse" game of street sales.
Industry representatives assert that local police charged with
enforcing the prohibition of street sales are often unmotivated and
indifferent to the presence of such vendors, if not directly paid to
ignore them.
¶7. (SBU) The pursuit of rulings against IPR violators in civil
courts remains problematic because of legal norms carried over from
Soviet times. According to the Prosecutor General's office and
private industry representatives, this is particularly so when
licensed copyright holders attempt to sue vendors of pirated
material for damages. Under current IPR legislation, plaintiffs are
subjected to an unnecessarily heavy burden of proof, whereby they
are required to demonstrate a direct contractual link to the artist
or author whose pirated material is being illegally sold. (Note: An
example would be a direct contract between a performer and record
store. End note.) If a licensed copyright holder or distributor can
not substantiate this direct linkage, they can not, in the eyes of
the court, demonstrate financial damages caused by illegal sales.
In addition, civil claims must also be brought in a court in the
region where the infringement is alleged to have occurred. Regional
courts tend to lack regular exposure to -- and knowledge of -- this
relatively new and complex area of law, which has historically
inhibited the successful prosecution of violations.
------------------------
OPTICAL MEDIA PROTECTION
------------------------
¶8. (SBU) Two plants in Kazakhstan produce optical discs. One
specializes in films and music, the other in software. Both plants
have source identification codes (SID's) issued by the IFPI
(International Federation of the Phonographic Industry) and, as IIPA
notes, provide samples of their products for use as forensic
evidence.
----------------------------
SOFTWARE INDUSTRY ENGAGEMENT
----------------------------
¶9. (SBU) According to local Microsoft representatives, all newly
procured government computers have licensed software. While some
older government computers may still be loaded with unlicensed
software, overall the Microsoft representative expressed strong
satisfaction with the government procurement situation. Most
recently, Microsoft founder Bill Gates and the CEO of Samgau
(Kazakhstan's state-owned technology and innovation holding company)
signed an MOU on plans for future cooperation in the development of
educational technologies, as well as collaboration in IPR protection
and enforcement. Microsoft is recognized for its successful
engagement in defense of IPR in Russia; its enhanced partnership
with the GOK is expected to improve IPR protective capacity in
Kazakhstan, with a particularly heavy focus on the prevention of
internet-related piracy.
¶10. (SBU) Despite the positive relations developing between
Microsoft and the GOK, Microsoft representatives recommend that
Kazakhstan be placed on the Special 301 Watch List. Recent findings
from Microsoft-funded research indicated that levels of privately
used pirated (or unlicensed) software remains extremely high.
According to their data, 92.9 percent of privately owned PC's in
Kazakhstan utilize of illegally obtained software. (Note: Their data
also indicated that the overwhelming majority of respondents
believed piracy rates would decrease if the prices of commercially
available software were to be lowered. This opinion was also shared
by the General Prosecutor's Office. End note.)
--------------------------------------------- -----
SCHEDULED AND ENACTED IPR LEGISLATIVE IMPROVEMENTS
--------------------------------------------- -----
¶11. (SBU) During the reporting period, Kazakhstan continued to
pursue legislative changes that strengthen the government's hand in
protecting intellectual property rights. The legal basis for
preventing and prosecuting IPR violations remains the "Law on
Amending Legislative Acts of the Republic of Kazakhstan on the
Issues of Intellectual Property", which entered into force on
November 26, 2005. This law amended the country's Criminal Code,
Criminal Procedure Code, Civil Code, Administrative Code, and the
Copyright Law as they pertain to the protection of intellectual
property (ref B). Amendments to the Patent Law were ratified in
2007, significantly simplifying the patent system (as compared with
the old Soviet two-stage system) and bringing it into closer
conformity with international standards.
¶12. (SBU) Proposed amendments to the Copyright Law, Law on Trade
Marks, Law on Licensing, and Customs Code are currently being
evaluated by independent experts. Proposed amendments to the
Copyright Law have been praised by private industry representatives
in as much as they directly address the weaknesses hindering
copyright enforcement in civil courts (see para 7 above). New
amendments will relieve IPR holders of the heavy burden of proof,
and will facilitate effective law enforcement. In accordance with
WIPO requirements, the draft amendments also detail the use of
technical means for the protection of copyrights, specifically
prohibiting the removal of any types of technical or coded copyright
protection technologies. The IPR Committee is confident that the
proposed amendments to the Licensing Law stipulating mandatory
licensing for the commercial reproduction of any copyright protected
audio and visual recordings meet WTO requirements. These amendments
are scheduled to come before Parliament in late May-early June
¶2008.
¶13. (SBU) Amendments to Customs Legislation granting ex officio
authority to customs agents are scheduled to come before Parliament
in November 2008. These amendments will grant customs agents the
authority to more readily seize counterfeit goods at the border,
which has long been recommended by the International Intellectual
Property Alliance (IIPA.)
-------------------------------------
IIPA REPORTING AND CONCERNS ADDRESSED
-------------------------------------
¶14. (SBU) Over the last several years, IIPA reporting has
consistently reiterated several concerns regarding the development
and efficacy of IPR protective measures in Kazakhstan. They have
also, however, continued to report several significant inaccuracies.
¶15. (SBU) The IIPA report states that "only the Ministry of Justice
(Copyright Office) and not the police can bring charges for
[administrative violations]" and recommends "that the existing
police authority be broadened to include administrative violations
as well." Article 620 of the Administrative Violations Code
specifically provides such powers to the police.
¶16. (SBU) The IIPA's assertion that the 2004 statutes only provide
for a 50-year term of copyright protection is inaccurate, as the
November 2005 amendments specifically provide for the extension of
copyright protection to 70 years, in keeping with international
standards.
¶17. (SBU) The IIPA repeats another error from its 2006 and 2007
reports, overstating the minimum damages threshold for criminal
prosecution. IIPA misinterprets what it calls "
the key amendment"
in the November 2005 legislation. i.e., the change to Article 184 of
the Criminal Code, which repealed the undefined "huge damage"
threshold for criminal cases and replaced it with a threshold of 100
Monthly Calculation Units (MCU's). The IIPA incorrectly reported
that one MCU is the equivalent of 36,495 tenge ($304), when in fact
it is currently set to just 1,168 tenge ($9.60). Thus, the IIPA
overstates the all-important minimum damages threshold for criminal
prosecution by a factor of more than thirty.
¶18. (SBU) The IIPA cites Kazakhstan's need to establish a legal
basis for the confiscation and destruction of equipment used in the
criminal manufacture of pirated goods. The IPR Committee continues
to assure post that a combination of statutes in the Criminal Code
and the Criminal Procedure Code constitutes an adequate provision
for the confiscation of such equipment. Moreover, the IPR Committee
has stated that such confiscations are routinely carried out and do
not require a court order. A court order is necessary only to
destroy such equipment -- a procedural requirement which the IPR
Committee defends as necessary to preserve potentially material
evidence. It should also be noted that the abovementioned proposed
amendments to the Copyright Law will require judges, in the event of
a conviction, to make a ruling regarding the named piracy equipment.
This provision is expected to increase occasions in which
confiscated equipment will be destroyed.
-------
COMMENT
-------
¶19. (SBU) Kazakhstan's continued progress on and commitment to IPR
protection merits its continued exclusion from the Special 301 Watch
List. The efforts of the IPR Committee within the Ministry of
Justice are expected to bear fruit in 2008 in the ratification of
amendments to numerous IPR-related laws. Post takes growing private
sector participation in the enforcement of IPR as a very positive
indicator of progress. At this stage, acknowledging Kazakhstan's
significant achievements while stressing to the GOK that they must
continue to enhance their IPR efforts is a better approach to
facilitate further U.S.-Kazakhstani IPR cooperation and achieve
results on the grounds than returning Kazakhstan to Watch List
status. End Comment.
ORDWAY

The information recorded on this site has been extracted from http://Wikileaks.org (Kazakhstan) database..

We wish to express our gratitude to Julian Assange and his team for making this data available as it is an important public record.

If you are new to these pages, please read an introduction on the structure of a cable as well as how to discuss them with others. See also the FAQs
Understanding cables
Every cable message consists of three parts:

The top box shows each cables unique reference number, when and by whom it originally was sent, and what its initial classification was.

The middle box contains the header information that is associated with the cable. It includes information about the receiver(s) as well as a general subject.

The bottom box presents the body of the cable. The opening can contain a more specific subject, references to other cables (browse by origin to find them) or additional comment. This is followed by the main contents of the cable: a summary, a collection of specific topics and a comment section.